Sentencing Law and Policy

Examining some circuits' unreasonable efforts at reasonable review

A helpful reader called my attention to a new federal sentencing note (which will appear in the William & Mary Law Review this fall) now available here via SSRN.  The note critically examines the effects of Rita and Gall in the Sixth and Tenth Circuits; here is the abstract:

Paul Sedore pleaded guilty to two counts for defrauding the Internal Revenue Service, conspiracy to defraud the IRS and identity theft. Based only on the facts that Sedore admitted in his guilty plea and his criminal history, the Federal Sentencing Guidelines would have recommended 12 to 18 months in prison.  But based on the facts that the sentencing judge found, by a preponderance of the evidence, which Sedore did not admit and the jury did not find beyond a reasonable doubt, the Guidelines advised a range of 84 to 105 months.  The court sentenced Sedore to 84 months. Had another judge sentenced Sedore to 84 months without finding those additional facts, the court of appeals would likely reverse this hypothetical sentence as unreasonable.

The Sentencing Guidelines are hardly as advisory as the Supreme Court imagines.  In United States v. Booker, the Supreme Court tried and failed to establish an appellate standard of review of sentences that both promotes uniformity and does not violate the Sixth Amendment right to a jury trial.  In Rita v. United States and Gall v. United States, the Court considered mechanisms that federal appellate courts use to enforce the Sentencing Guidelines, the presumption of reasonableness and proportionality review.  As in Booker, the Court tried and failed to rein in the courts' infringements on the jury trial right.  By closely examining the Sixth and Tenth Circuits, this Note demonstrates how the combination of the presumption of reasonableness, the double standard of procedural reasonableness, and proportionality review still violate the Sixth Amendment.  Short of Congressional overhaul, this Note argues that the Supreme Court should solve its inherently flawed Booker remedy by prohibiting substantive reasonableness review and requiring uniform sentencing explanations from district courts.

Two notable Rita remands from the Eighth Circuit

The Eighth Circuit today has two notable (and notably similar) remands based on Rita.  My friends cut and paste help me provide these unofficial summaries from this official circuit webpage:

US v. William Greene, No: 07-1479 [PUBLISHED] [Bye, Author, with Bowman and Smith, Circuit Judges](available here): In light of Rita, the district court's application of a presumption of reasonableness to the applicable guidelines range was a significant procedural error, and the case is remanded for resentencing.
 
US v. Nathan Huff, No: 07-1500 [PUBLISHED] [Bye, Author, with Bowman and Smith, Circuit Judges](available here): In light of Rita, the district court's application of a presumption of reasonableness to the applicable guidelines range was a significant procedural error, and the case is remanded for resentencing.

Sixth Circuit continues taking reasonableness review seriously

For many reasons, including the fact that the case has been bouncing around the federal courts for more than 5 years, the Sixth Circuit might have been inclined to summarily approve the within-guideline sentence at issue in US v. Peters, No. 05-6101 (6th Cir. Jan. 14, 2008) (available here).  Instead, in a brief published opinion, the Peters panel remands for another resentencing because "the District Court did not address the defendant's 'time-served' argument or the mitigating factors indicating that a 'time-served' sentence would satisfy the so-called 'parsimony provision' of 18 U.S.C. § 3553(a)."  Peters thus serves as another reminder that district courts, at least in the Sixth Circuit, need to make sure they always show their sentencing work after Booker.

AFDA webcast on lastest federal sentencing developments

As detailed on this page, Gregory Nicolaysen, the founder of the Association of Federal Defense Attorneys (AFDA), has organized another of his great audio webcast for this Wednesday (December 19) at 12noon ET to allow me to discuss Kimbrough, Gall, the new crack guidelines and related federal sentencing happenings  and its possible aftermath. 

Unlike other groups seeking big bucks for webcasts, the AFDA usually only charges a nominal fee and the Greg has made this webcast free for everyone.  The webcast will be an informal interview conducted over live streaming audio, with accompanying text posted to a viewing screen and links to PDF files containing materials relevant to the topics discussed. To attend this webcast, simply:

• Go to the AFDA home page and put your cursor on the Audio Webcast bar, then...
• In the drop-down menu that appears, select "Attend A Webcast," then...
• Enter the following: Username: AFDA (all caps; case-sensitive); Password: 121907

Though I plan primarily to recap and expand upon some commentary already appearing here, I'd be grateful if readers might use the comments to note any issues that seem particular important for me to cover during this webcast.

A significant (unpublished?!?!?) Second Circuit Rita ruling

The Second Circuit today has a lot of effective sentencing analysis in its unpublished(!?!) ruling in US v. Baker, No. 05-4693 (2d Cir. Nov. 16, 2007) (available here).  The summary order reverses for lack of adequate explanation a within-guideline sentence by stressing the importance of giving sentencing reasons after Booker and Rita.  Here are some snippets from a strong opinion that, in my view, should be published:

Sentencing judges are not relieved of their obligation to provide their rationale for sentencing because they impose a sentence within the Guidelines....  The increased discretion granted to judges by the Booker decision only amplifies the importance of articulating the reasons for a particular sentence and requires sentencing judges’ compliance with § 3553(c)’s requirements.

Here, although Baker argued that he was entitled to a sentence below the Guidelines range and raised numerous arguments to that effect, the district court made clear from the outset of the sentencing hearing that it would only consider a sentence within the Guidelines.  The district court did not articulate why a Guidelines sentence was appropriate....

Baker specifically argued that there are no findings by Congress or the Sentencing Commission to support the assumption that people who possess or transport child pornography are likely to engage in the sexual victimization of children, and that, when crafting the heightened Guidelines range for these offenses, the Sentencing Commission failed to consider this fact. The district court’s reticence to discuss how Baker’s conduct fits within the range of child pornography offenses targeted by the Guidelines is especially problematic in light of its specific finding that there was no evidence that Baker engaged in any sort of sexual abuse.

Given the circumstances presented by Baker’s case, as well as the non-frivolous arguments made on his behalf for a below Guidelines sentence, at the very least, the district court needed to articulate why it did not consider or choose a non-Guidelines sentence.  Even though the district court stated that it had considered the § 3553(a) factors, that it was not bound by the Guidelines and that it found a sentence within the Guidelines to be “necessary, reasonable, and appropriate to address the nature and seriousness of the offense, the criminal history category, and the characteristics of the [d]efendant to serve the overall objectives of punishment, general deterrence, incapacitation, and rehabilitation,” there is nothing in the record which showed that the district court actually complied with these statements.

This was not a “typical case” where “the context and the record make clear” the reasoning underlying the judge’s conclusion.  Rita, 127 S. Ct. at 2468-69.  The district court’s lack of analysis of the positions presented by defense counsel and relevant under § 3553(a) precludes proper appellate review of the reasonableness of Baker’s sentence.

Rooting for the Sixth Circuit to take acquitted conduct en banc in White

As noted in this prior post, a Sixth Circuit panel earlier this month indicated that all three members would strongly recommend" en banc review of the "important question" of "whether the continuing use of acquitted conduct as a sentencing enhancement violates United States v. Booker, 543 U.S. 220 (2005)."  This quoted language comes from the panel's per curiam ruling in US v. White, No. 05-6596 (6th Cir. Oct. 5, 2007) (available here).  I believe an en banc petition was filed last week in White, so now I am eagerly awaiting word on whether the White panel has convinced the majority of the Sixth Circuit to take up the acquitted conduct issue. 

As regular readers know (and as posts linked below highlight), I find acquitted conduct enhancements especially troublesome in the wake of Blakely and Booker.  Moreover, Justice Scalia's concurring opinion in Rita indicates that some within-guideline sentences depending too much on judicially found facts would trigger "as-applied" Sixth Amendment concerns even within an advisory guideline scheme.  Justice Scalia's discussion of "as-applied Sixth Amendment challenges" in Rita provides further support for a constitutional attack on use of acquitted conduct as a sentencing enhancement.

Further, a number of district court opinions suggest that sentencing courts may be taking a variety of post-Booker approaches to the consideration of acquitted conduct sentencing enhancements.  For example, a terrific district court opinion from the Eastern District of Virginia in Ibagna (discussed here) makes a strong case for why acquitted conduct should no longer be used at sentencing now that Booker mandates that the provisions of 18 U.S.C. § 3553(a) guide sentencing decision-making.  And, within the Sixth Circuit, another terrific district court opinion from the Southern District of Ohio in Coleman (discussed here) reaches a distinct conclusion about how to deal with acquitted conduct enhancements after Booker.

In short, in addition to a core constitutional issue, acquitted conduct enhancements after Booker raise interesting and important statutory interpretation and reasonableness review issues as well.  Because the Sixth Circuit has been among the most thoughtful and nuanced appellate courts trying to sort through Booker fall-out, I am very hopeful it will be the first circuit to assess these issues directly through an en banc proceeding.

Some related posts:

• Will the Sixth Circuit consider acquitted conduct enhancements en banc?
• Strong commentary on acquitted conduct sentencing
• A terrific district court opinion on acquitted conduct
• New (or renewed) ideas and arguments suggested by Rita
• Sincere questions about acquitted conduct sentencing

Read all about Rita (and get ready for Gall and Kimbrough)

I am pleased to see that the Denver University Law Review now has all the papers in its special symposium on Rita now available at this link.  A list of the titles and contributors shows why anyone interested in federal sentencing after Booker has to cruise over and check out all the paper in the symposium:

• Rerouted on the Way to Apprendi-land: Booker, Rita, and the Future of Sentencing in the Federal Courts: An Introduction
  Sam Kamin 

• Rita, Reasoned Sentencing, and Resistance to Change
  Douglas A. Berman 

• Empirical Questions and Evidence in Rita v. United States
  Paul J. Hofer 

• Rita, District Court Discretion, and Fairness in Federal Sentencing   
  Hon. Lynn Adelman & Jon Deitrich

• Rita Needs Gall—How to Make the Guidelines Advisory
  Hon. Nancy Gertner

• An Appellate Perspective On Federal Sentencing After Booker and Rita
  Hon. Jeffrey S. Sutton

A few of my scholarly thoughts on Rita

I was honored to be asked by students at the Denver University Law Review to contribute my thoughts about the Supreme Court's work in Rita v. United States, and very pleased that the students at DULR were eager to get a special issue on Rita to press before the Court heard Gall and Kimbrough.  My contribution, entitled "Rita, Reasoned Sentencing, and Resistance to Change," is now available at this link.

I will do a number of future posts about my piece and the other terrific pieces that DULR has assembled in short order, but for now let me just provide this snippet from my introduction:

As explained in Part I below, the Booker remedy transformed a constitutional debate into a multi-dimensional cacophony of sentencing issues that Rita could only begin to address.  Moreover, as detailed in Part II, though Rita does answer a few key post-Booker questions, the opinions in Rita have passages that present new puzzles for anyone trying to sort through the post-Booker world of federal sentencing.  Finally, as discussed in Part III, Rita and lower courts’ early reactions to the decision ultimately reveal, yet again, that dramatic legal changes face resistance from sentencing actors who become acclimated to the status quo. Indeed, the history of modern federal sentencing reforms demonstrates that changes in legal doctrines become revolutionary only when they ultimately transform the legal cultures in which these doctrines operate.  This lesson should be heeded not only by the Supreme Court as it considers another set of sentencing cases, but also by all would-be legal reformers in the field of sentencing and beyond.

Top-side briefs in Gall and Kimbrough

All the briefs on the petitioners/defendants' side of the two pending SCOTUS reasonableness cases, Gall v. United States and Kimbrough v. United States, were filed last week. I believe all of these briefs can be accessed at this page created on the New York Council of Defense Lawyers ("NYCDL") website.  (In addition, Paul Rashkind has assembled a lot of the briefs here, and I believe they will also appeal on this defender website eventually.)

I have only so far had a chance to read some of the briefs (in part because I was helping with this NYCDL brief in Gall).  There appears to be a lot of interesting and important post-Rita work being done in these briefs, and readers are encouraged to spotlight particular efforts and passages they consider especially notable.  I hope to find time after the bottom-side briefs are filed to comment on what the Justices might think about what they are being told.

UPDATE:  I have been told that briefs on the defender website are available here for Gall and here for Kimbrough.

Two Rita sightings (citings?) in the Eighth Circuit

I am still waiting for some circuit to issue a major Rita ruling (and perhaps I may have to wait forever).  While waiting, the Eighth Circuit today at least cites Rita in two notable sentencing opinions:

In US v. Jones, No. 06-3489 (8th Cir. July 10, 2007) (available here), the panel affirms a within-guideline crack sentence and cites Rita to support the sufficiency of the district court's limited sentencing comments.

In US v. Icaza, No. 06-2882 (8th Cir. July 10, 2007) (avaiable here), the panel reverses three within-guideline sentences because of a miscalculation of the number of victims involved when the defendants "shoplifted from approximately 407 Walgreens stores."  Interestingly, as interpretted in Icaza, the federal sentencing guidelines treat shoplifting hundreds of times from different outlets of one store as less serious than shoplifting once from a dozen different stores. 

Senator Biden picking up Scooter Libby and Victor Rita parallels

I am pleased to see from this post on Senator Joe Biden's blog that the senior senator from Delaware — where I am right now supposedly on vacation — is talking about the different treatment that the Bush Administration has shown toward Scooter Libby and Victor Rita.  Here is the text of Senator Biden's recent official statement:

“Tony Snow said that President Bush decided to commute Scooter Libby’s two and a half year-prison sentence for perjury and obstruction of justice, because it was ‘excessive.’

“Yet last year the Bush Administration filed a “friend-of-the-court brief” with the Supreme Court, in an attempt to uphold a lower court’s ruling that a 33-month prison sentence for Victor Rita, who was convicted of the same exact charges, perjury and obstruction of justice, was ‘reasonable.’

“The questions we should all be asking ourselves today are: Why is the President flip-flopping on these criminal justice decisions? Why is Scooter Libby getting special treatment?”

As is not uncommon, the politician has the law a little wrong.  The Bush Administration was filing as a party (the respondants) in the Rita case before the Supreme Court.  Also, I think SG's Rita brief was filed in this year.  But, legal technicalities aside, Senator Biden is right to wonder why President Bush viewed Scooter Libby's (within-guidelines) prison sentence to be excessive while his Justice Department has argued so forcefully that Victor Rita's (within-guidelines and longer) sentence is reasonable.

As detailed in many posts below, I have been noting the Libby-Rita parallels for quite some time:

• Revving up for Rita: harsh treatment for a lesser Libby
• Comparing Lewis Libby and Victor Rita
• Rudy Giuliani suggests Libby's within-guideline sentence is unreasonable
• Another former federal prosecutor suggests Libby's within-guideline sentence is unreasonable
• Rita has something for everyone (except Victor Rita)
• NPR report noting the Lewis Libby and Victor Rita parallels

The opinion(s) in Rita

Here is the vote breakdown in the Rita opinion (which How Appealing makes available via westlaw at this link):

• Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Ginsburg, and Alito, JJ., joined, and in which Scalia and Thomas, JJ., joined as to Part III.
• Stevens, J., filed a concurring opinion, in which Ginsburg, J., joined as to all but Part II.
• Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which Thomas, J., joined.
• Souter, J., filed a dissenting opinion.

A very quick read suggests the main opinion is very supportive of the work of district courts, circuit courts and the Sentencing Commission, all of which adds up to a loss for Mr. Rita on appeal (and generally bad news for Lewis Libby and other defendants seeking to challenge within-guideline sentences).

UPDATE:  The full 59-page effort is now also at this link.  My printer is working overtime, and I'll likely need a few hours to digest what's here.  Separate posts on each of the four opinions will follow.

Rita is here and...

Lyle Denniston is reporting here at SCOTUSblog that Rita is out and upholds a presumption of reasonableness for within-guideline sentences.  However, the vote count suggests the opinion may be very nuanced.  Here is the first report:

The Supreme Court ruled on Thursday that a federal criminal sentence within the Guidelines may be presumed to be reasonable when the case is on appeal. However, it said that such a presumption is not binding.  Although the Court was divided in some respects, the vote on the result was 8-1 with only Justice David H. Souter dissenting in Rita v. U.S. (06-5754).

A lot more to follow, of course.

MORE:  Here is Lyle's new paragraph describing the main opinion:

In key passages in Justice Stephen G. Breyer's main opinion, the Court said: "A non-binding appellate presumption that a Guidelines sentence is reasonable does not require the sentencing judge to impose that sentence.  Still less does it forbid the sentencing judge from imposing a sentence higher than the Guidelines provide for the jury-determined facts standing alone.  As far as the law is concerned, the judge could disregard the Guidelines and apply the same senence (higher than the statutory minimum or the bottom of the unenhanced Guidelines range) in the absence of the special facts (say, gun brandishing) which, in the view of the sentencing Commission, would warrant a higher sentence within the statutorily permissible range.  Thus, our Sixth Amendment cases do not forbid appellate court use of the presumption."

I am now certain that one of the levels of hell involves trying to figure out what an important SCOTUS ruling says and means before being able to access the opinion itself.

Anticipating Rita reactions

Whenever the Supreme Court hands down a ruling in Rita — and, gosh, I hope it's soon — I will be watching closely reactions from other federal sentencing participants.  Of course, the nature and swiftness of reactions will depend greatly on whether the Court in Rita ratifies the reasonableness status quo for within-guidelines or instead rejiggers the post-Booker landscape.  But, even without seeing the opinion, we can already anticipate how key actors will likely respond:

• The Justice Department, as it has over the last 2 years, seems likely to continue to advocate for a Booker fix in the form of some kind of topless mandatory guideline system.
• The US Sentencing Commission, as it has over the last 2 years, seems likely to continue to champion the importance and centrality of its guidelines.
• Congress, as it has over the last 2 years, seems unlikely to have much interest in embarking upon a serious project of comprehensive sentencing reform.
• Individual district judges, as they have since Booker, seem likely to find support for either migrating from or migrating toward the guidelines.
• Circuit courts, as they have since Booker, seem likely to rule far more often in favor of the government on appeal than for defendants.

Of course, all this does not mean the outcome in Rita is inconsequential.  Rather, my main point is to highlight some structural realities that will shape Rita reactions no matter what the ruling.  (Also, adding to these status quo dynamics is the fact that SCOTUS will not drop other reasonableness review shoes until probably 2008 when it eventually rules in Gall and Kimbrough.)

Some recent related posts:

• A coming reasonableness clusterf#@k?  Ruminations while waiting for Rita
• Could the Libby case be impacting the Justices' views and work on Rita?
• SCOTUS scratches my sentencing itch, but also has me scratching my head
• Thinking through Kimbrough and the state of crack sentencing
• Talk about having Gall
• Reasonableness review revisions (and revolutions?)
• Rita reasonableness case archive

A coming reasonableness clusterf#@k? Ruminations while waiting for Rita

SCOTUS guru Tom Goldstein is now predicting here that Justice Alito is writing the opinion for the Court in Rita, after having previously predicted that Justice Stevens and then that Justice Breyer was in charge of Rita.  I think all of Tom's predictions may be right because, as I wait impatiently for a ruling on reasonableness from the Court, I am now thinking we could get many opinions in Rita.  Let me detail my latest (wholly speculative) ruminations on Rita:

1.  The Sixth Amendment's impact: Given the Court's recent ruling in Cunningham and the affinity shown by Justices Stevens, Scalia and Thomas for the Sixth Amendment jury trial right, there likely will be at least one Rita opinion stressing the impact and import of the Sixth Amendment in post-Booker sentencing.

2.  The SRA's impact: Given the remedial opinion in Booker and the Court's unanimous work a decade ago in Koon, there likely will be at least one Rita opinion stressing the impact and import of the statutory provisions of the Sentencing Reform Act (and especially 3553(a)) in post-Booker sentencing.

3.  The USSC's impact: Given the remedial opinion in Booker and also the the affinity shown by Justices Breyer and Alito for the US Sentencing Commission, there likely will be at least one Rita opinion stressing the impact and import of the guidelines in post-Booker sentencing.

Perhaps one impressively comprehensive opinion for the Court can cover all this ground.  But the disaffinity of Justices Kennedy and Breyer for the Sixth Amendment jury trial right suggests they won't join an opinion praising Blakely's view of jury trial rights.  And the apparent disaffinity of Justice Scalia for the USSC (and for Justice Breyer?) suggests he won't join an opinion praising the guidelines.

Throw into this mix the two new Justices — whose contrasting votes in Cunningham suggest they look at these issues and the Court's recent sentencing jurisprudence quite differently — and we could have a real mess on our hands with perhaps multiple plurality opinions in Rita. 

Indeed, the Court's cert grants in two new sentencing cases set for argument next term perhaps makes the most sense if the Justices have been struggling with a messy set of opinions in Rita.   Perhaps the Justices realize that their work in Rita will raise as many questions as it answers, and thus they want and will need another big bite at the post-Booker sentencing apple to provide guidance to lower courts still trying to sort through the post-Booker world.

Some recent related posts:

• Could the Libby case be impacting the Justices' views and work on Rita?
• SCOTUS scratches my sentencing itch, but also has me scratching my head
• Thinking through Kimbrough and the state of crack sentencing
• Talk about having Gall
• Reasonableness review revisions (and revolutions?)
• Rita reasonableness case archive

Could the Libby case be impacting the Justices' views and work on Rita?

As I have highlighted in posts here and here, decorated veteran Victor Rita received a within-guideline 33-month sentence for seemingly less serious instances of perjury and obstruction than the crimes that have led to Lewis Libby's 30-month within-guideline sentence.  Meanwhile, as public debate over Libby's sentence has raged for nearly a month, the Supreme Court has been finalizing its ruling concerning whether Victor Rita's sentence is constitutional and reasonable under Booker and 18 U.S.C. § 3553(a).

Notably, the Libby outcome has already led a number of persons known for tough-on-crime views and rhetoric to decry the length of Libby's 30-month within-guideline sentence: former federal prosecutors Rudy Giuliani and William Otis have both made statements suggesting that Libby's sentence is unreasonably long.  Though not stated in these terms, these high-profile criticisms of the length of Libby's sentence certainly spotlight the suspect nature of post-Booker doctrines that essentially apply a conclusive presumption that any and every within-guideline sentence is reasonable. 

Though Supreme Court rulings are probably rarely impacted by inside-the-Beltway Sturm und Drang, it would be quite difficult for the Justices not to see the shadow of Lewis Libby hanging over their work in Rita.  Though I doubt Libby's name will appear in the eventual Rita ruling, I think it is quite possible (and arguably quite appropriate) that the Libby case is impacting the Justices views and work on Rita.

Some recent related posts:

• Revving up for Rita: harsh treatment for a lesser Libby
• Comparing Lewis Libby and Victor Rita
• Rudy Giuliani suggests Libby's within-guideline sentence is unreasonable
• Another former federal prosecutor suggests Libby's within-guideline sentence is unreasonable
• Libby sentencing archive
• Rita reasonableness case archive

SCOTUS still keeping us sentencing fans waiting

According to this post at SCOTUSblog, the three opinions issued by the Supreme Court today include nothing exciting for criminal justice fanatics (though there was a 5-4 split ruling against a defendant on a technical appellate jurisdiction issue).  So, we will all have to wait until at least next week for a Rita ruling.

I must admit that I'm not too disappointed because now I can focus on other important matters over the next few days.

Are we just a day away from a ruling in Rita?

Word on the street is that the Supreme Court could issue as many as four opinions tomorrow morning.  And, as regular readers may recall from this post, Deputy SG Michael Dreeben last month predicted that Claiborne and Rita would be decided in the second week of June. 

Of course, Dreeben's prediction predated the unexpected demise of Claiborne and the new federal sentencing cert grants.  Nevertheless, it is surely only a matter of weeks before we get a decision in Rita, and perhaps in fact now it is only a matter of hours.

Any (last-minute?) guesses about what Rita will say and how many opinions there will be? 

SCOTUS scratches my sentencing itch, but also has me scratching my head

I am, of course, excited that the Supreme Court has now taken up two new federal sentencing cases, Kimbrough from the Fourth Circuit and Gall from the Eighth Circuit, to deal with post-Booker sentencing issues (basics here).  Based on a quick review (and helpful reader comments) and more from SCOTUSblog, it seems that that Gall is a partial replacement for the Claiborne case because it addresses a below-guideline sentence reversed by the Eighth Circuit.  But unlike Claiborne, Gall is not a crack case, so Kimbrough was apparently taken to allow the Justices to address directly whether a district court may deviate from the guidelines based on a disaffinity for the harsh crack guidelines.

Perhaps the key and most significant fact in both Gall and Kimbrough is that the district court in both cases imposed a below-guideline sentence that a circuit court thereafter reversed as unreasonable.  In sharp contrast, the Rita case still pending before SCOTUS (and still expected to be decided this term?) deals with a within-guideline sentence imposed by the district court and affirmed as presumptively reasonable by the Fourth Circuit.  Also significant is that the Supreme Court apparently plans to hear Gall and Kimbrough under a normal schedule next Fall, but likely still will issue a ruling in Rita this month.

So, adding up these pieces, what does this likely mean for the future of federal sentencing law and post-Booker jurisprudence?  I am still scratching my head, but let me venture a few ruminations:

1.  Based on the 1996 Koon decision, I have long thought that even anti-Blakely Justices favor significant district court discretion over circuit court lawmaking in the sentence arena.  Consequently, I have always expect that the post-Booker cases would champion district court discretion (and perhaps fault excessive circuit court intervention) in sentencing determinations.

2.  The "problem" with Rita is that championing district court discretion by affirming the sentence imposed by the district court also serves, at least indirectly, to praise the guidelines.  (And, conversely, reversing in Rita might suggest reasonableness review should be aggressive.)

3.  Without the Claiborne companion, the Justices may be worried that Rita alone wont allow the development of the complete message they wish to send to lower courts about post-Booker doctrines and practices.

4.  But all the timing (and the many options) have me really puzzled.  Whatever the court does with Rita, the holding and the dicta will reverberate through the federal sentencing world ASAP.  And yet, as the Rita pebble (or boulder) ripples through the federal sentencing pond, everyone will know that the Justices have just picked up two more rocks to throw into the pond.  And, under usual timelines, we shouldn't expect rulings in Gall and Kimbrough until perhaps January 2008 or later.

5.  Sadly, I am now worried we might know who's the next President before we know what Booker really means for federal sentencing.  Oy vey.... though I guess it's good for my business.

A legal eulogy for the Claiborne case

The St. Louis Post-Dispatch has this new article, entitled "Death leads to dismissal of key Supreme Court case," that discusses the legal aftermation of the death of Mario Claiborne.  Here are excerpts:

Investigators are still sorting out why Mario Claiborne was following a stolen pickup last week and just how the pursuit led to gunfire and Claiborne's death.  But the killing has created other legal twists, as it forced the dismissal of Claiborne's closely watched case before the U.S. Supreme Court, which was expected to rule within the next few weeks. J ustices were to clarify how much discretion federal judges have when applying sentencing guidelines....

Claiborne's case already had traveled an improbable road by reaching the Supreme Court, where oral arguments were held in February.  Thousands of people seek review by the high court and few succeed. And of those who get the court's attention, even fewer are killed before their case is heard.  "Once people make it to the Supreme Court, we don't tend to lose them," said Tom Goldstein, who heads the Supreme Court practice of Washington law firm Akin Gump Strauss Hauer & Feld.

The case had been watched across the country and potentially could have affected thousands of criminal defendants and a growing backlog of cases awaiting resolution of the issue.  About 9,800 of the more than 70,000 defendants sentenced in federal court in fiscal year 2006 got similar departures from guideline sentences, according to Justice Department statistics.  "You've got a lot of different parties that see this as having a far-reaching effect," [Assistant U.S. Attorney Cris] Stevens said.

Some related posts:

• Mario Claiborne killed in strange robbery... now what?!?!?
• Could SCOTUS address below-guideline sentences in another case?
• SCOTUS dismisses Claiborne, again rules 5-4 in a capital case
• Shouldn't SCOTUS just do Rita right and go from there?
• Reasonableness review revisions (and revolutions?)

Reasonableness review revisions (and revolutions?)

As highlighted by two posts at SCOTUSblog, the state and fate of reasonableness review in the Supreme Court may be evolving even though the Rita decision may still be weeks away.  First, Tom Goldstein here, rethinking his prior authorship prediction, now says Justice Breyer is likely "writing at least one of the opinions in the sentencing cases."  Of course, as of this writing, there is only one remaining sentencing case, Rita, after the Claiborne case went away due to the defendant's death (basics here).

But, as detailed in this post by Lyle Denniston, the Solicitor General, through this new filing, has now "urged the Supreme Court ... to grant review in a new Sentencing Guidelines case replacing one that has been ordered vacated, and suggested that the new case could be decided before the Court finishes the current Term, perhaps later this month."  The new case, as previously previewed here, is Beal v. US (docket 06-8498). 

As I explained in this post, I am not too keen on SCOTUS rushing through a new set of facts in Beal to address the issues raised Claiborne.  That said, I think the SG is absolutely right when he says, in this latest SCOTUS filing, that the "federal criminal justice system has a great need for this Court's guidance concerning the nature and scope of review of out-of-guidelines sentences under Booker." 

Because so many issues of sentencing law and policy intersect in the Supreme Court's sentencing cases (as I detailed in this post), I still believe the Supreme Court would be wise now to invest its time and energy in getting Rita right and then subsequently gear up to hear and decide out-of-guidelines issues next Term.  However, the SG obviously has a uniquely informed perspective on these federal criminal justice issues, and this Beal might be on the fact track to the Supreme Court reporter.

Anyone want to hazard a new prediction on what exactly the Justices will now do with reasonableness review (and when they will do it)?

Some recent related posts:

• Mario Claiborne killed in strange robbery... now what?!?!?
• Could SCOTUS address below-guideline sentences in another case?
• Can the Claiborne case survive Mario Claiborne's demise?
• SCOTUS dismisses Claiborne, again rules 5-4 in a capital case
• Shouldn't SCOTUS just do Rita right and go from there?
• Claiborne and Rita reasonableness case archive

Shouldn't SCOTUS just do Rita right and go from there?

As noted here, the Supreme Court officially took the Claiborne case off its docket through this per curiam opinion that vacates the Eighth Circuit's opinion in the wake of Mario Claiborne's death (basics here).  But this expected move now raises a host of questions about what the Justices will and should do with the important issues raised and extensively briefed in Claiborne. 

As detailed here, Claiborne's lawyer has suggested an alternative case, Beal v. U.S. (docket 06-8498), for the Court to take up in order to be able to address directly reasonableness review in a case involving a below-guideline sentence.  I believe the SG's office has not yet officially weighed in on this suggestion, though perhaps something will be filed soon in the wake of the Court's official ruling in Claiborne.

For a variety of reasons, I hope SCOTUS does not take up and rush through another case to replace the Claiborne case.  Claiborne involved a distinct set of facts built on a unique lower court record.  Though perhaps the Justices had a view of the Claiborne case that was not focused on its unique facts, all sound sentencing determinations are necessarily fact- and context-specific.  (Indeed, as I argued in various amicus filings in Claiborne and Rita (available here), 3553(a) can be understood to demand fact- and context-specific reasoned judgments by district courts at initial sentencings and by circuit courts applying reasonableness review.)

Though lower courts certainly need additional SCOTUS guidance on how to deal with below-guideline arguments and sentences, the Justices still can and should address the most pressing post-Booker issues through a complete ruling in Rita.  Though the Roberts Court has tended toward narrow rulings, I believe both judicial modesty and doctrinal clarity can be best served if the Court provides a thorough analysis and ruling in Rita and then just waits to consider and address other post-Booker issues through the Court's standard review procedures.

SCOTUS dismisses Claiborne, again rules 5-4 in a capital case

After a few quite sentencing weeks, SCOTUS did a lot this morning that sentencing fans will find interesting.  SCOTUSblog is, of course, the place to get all the early reports, and here are the sentencing highlights thanks to Lyle Denniston:

The Supreme Court on Monday threw out the case of Claiboirne v. U.S. (06-5618), because the individual involved, Mario Claiborne of St. Louis, Mo., had died last week.  The Court ordered an Eighth Circuit decision in the case vacated as moot.  The case involved the question of whether it is presumed to be unreasonable for a federal judge to impose a below-Guidelines range sentence, if there were no extraordinary circumstances in the case.  The Court took no immediate action on a plea to grant review in a substitute case from the Eighth Circuit raising the same issue....

The Supreme Court, dividing 5-4, ruled on Monday that federal courts must defer to trial courts in deciding whether to remove a juror from a death penalty trial because of the potential juror's views about capital punishment.  The Court said that the trial judge "is in a superior position" to make that decision.  The case was Uttecht v. Brown (06-413), with the Court reversing the Ninth Circuit Court.  Justice Anthony M. Kennedy announced the decision of the majority, and Justice John Paul Stevens responded from the bench for the dissenters.

Commentary will follow on both of these developments later in the day.

Will SCOTUS address Claiborne's fate on Monday?

On Monday morning, the Supreme Court will release orders and probably a few new opinions.  Before last week, I thought there was a chance that we might decisions in the Claiborne and Rita reasonableness case as early as this Monday (although wiser folks than me had predicted the middle of June for these critical rulings on Booker's meaning and impact on federal sentencing).

However, the death of Mario Claiborne (details here) would seem to ensure that SCOTUS will need more time to sort out these matters.  Thus, I think the chief issues now are whether the Supreme Court's orders on Monday will include some formal action on the Claiborne case and will provide some indication on how the Justices plan to handle these matters going forward.  Any predictions, dear readers?

Related posts:

• Mario Claiborne killed in strange robbery... now what?!?!?
• Could SCOTUS address below-guideline sentences in another case?
• Can the Claiborne case survive Mario Claiborne's demise?
• Claiborne and Rita reasonableness case archive 

Can the Claiborne case survive Mario Claiborne's demise?

As detailed in this post from Lyle Denniston at SCOTUSblog, an effort is underway to help the Supreme Court resolve the issues raised by the Claiborne case even though Mario Claiborne died last week (details here).  Here are the basics from Lyle's post:

A public defender in St. Louis has urged the Supreme Court to find a way to decide in the current Term a significant issue about federal criminal sentencing law that was at stake in a case involving an individual who died last week.  The case is Claiborne v. U.S. (docket 06-5618)...

Michael Dwyer, assistant federal public defender in the Eastern District of Missouri, on Friday filed a motion asking the Court either to go ahead and decide the Claiborne case as presented, or to grant expedited review of another case from Dwyer's office involving the same Guidelines question. The alternative case suggested is Beal v. U.S. (docket 06-8498) -- like Claiborne, from the Eighth Circuit Court. The Supreme Court considered the Beal case at a Conference in February, but took no action on it, apparently intending to hold it until after it had decided Claiborne....

Dwyer contended in his motion that "the close similarity of the facts and decisions of the districts courts and appellate panels in Claiborne and Beal makes the latter case an efficient and effective vehicle to resolve the urgent issues presented in Claiborne.  Because of his representation of Claiborne, the Federal Public Defender for the Eastern District of Missouri could expeditiously prepare Beal for briefing and argument."

Could SCOTUS address below-guideline sentences in another case?

A thoughtful reader asks:

Wouldn't it be possible for the Surpeme Court simply to...

1. take another case on cert for the same issue in Claiborne (there are a ton of appeals out there on the same issue; US v. Eura, which is on cert from the 4th Cir, to name just one),
2. decide in its discretion that it doesn't need oral argument or briefing to decide the case (certainly, it has discretion to do so),
3. and write effectively the same decision with a different facts section? 

Is there anything stopping it from doing this?

Mario Claiborne killed in strange robbery... now what?!?!?

I have been hearing rumors since yesterday that the defendant in Claiborne v. US, Mario Clairborne, had been killed in Saint Louis.  I have now confirmed through various sources that the "Morio Claiborne" mentioned in this article as having been killed in a car robbery incident is the same person whose case is right now pending before the Court. 

My sources tell me that something will be filed officially with the Supreme Court today.  But exactly what this means for the Claiborne case (and the companion Rita case) remains to be seen.  Needless to say, I am stunned by this remarkable development, and I wonder if there is any recent precedent about what exactly should be done in circumstances like this.

Wow... and I'm very interested in reader comments.

UPDATE: SCOTUSblog is now reporting the news and has this analysis of now what:

Under Supreme Court Rule 35, when a party to a case has died, a personal representative may be named if the legal interests would survive the death.  That would not be possible in a case involving a convicted and sentenced individual, who has the sole legal interest in the outcome. Thus, it would appear that the Claiborne case would simply be dismissed by the Court, leaving that aspect of the Guidelines reasonableness inquiry unsettled -- unless the coming decision in the Rita case goes beyond the single issue presented there.

Who's writing how many opinions in Claiborne and Rita?

In the this post and its comments, Tom Goldstein speculates that Justice Stevens is writing the opinion for the Court in Claiborne and Rita.  Others suggest that Justice Breyer might have the assignment.  I am pretty convinced that they will both author something in these cases.  (After all, these two Justices combined for four opinions in Booker).

In addition to speculating about who is writing for the Court, it is also fun to ponder how many total opinions there will be in Claiborne and Rita.  Technically, these are two distinct cases that surely could produce different voting outcomes/patterns and thus might require distinct majority and dissenting opinions.  In addition, I would guess that, in addition to Justices Stevens and Breyer, at least three or maybe four or perhaps even five other Justices — Justices Scalia, Ginsburg, Alito and maybe also Justices Kennedy and Thomas — may want to speak their peace in these cases.

For all these reasons, I'll set the over/under for total opinions in Claiborne and Rita at six (which was the total number of opinions in Booker).  I am eager to hear readers make arguments for either the over or the under as we wait.

Should SCOTUS now just remand Claiborne in light of the new USSC report?

The new USSC cocaine report provides so much to discuss (basics here), I am not sure where to start.  In the hope generating a lawyerly debate, I'll start with these provocative questions:

1.  Should the Justices now just simply remand the Claiborne case — which concerns the reasonableness of a below-the-old-crack-guideline sentence — to the Eighth Circuit for reconsideration in light of the new USSC report and amendments?

2.  Should the Justices request letter briefs on this issue from the parties and/or should Claiborne's lawyer or the Solicitor General request a remand?

Put simply, the new report and amendments from the USSC provides powerful new evidence about the reasonableness of crack sentences, especially for low-level offenders like Mario Claiborne.  Though I thought that Claiborne's below-guideline sentence was reasonable before the USSC latest analysis, the USSC report provides a lot of new information and perspective on any decision to give a below-the-old-crack-guideline sentence.

As question 2 suggests, this issues seems lively enough to justify soliciting input from the parties.  And, in my view, some (or all) of the lawyers might reasonably decide their client's interests would be best served by a simple remand without SCOTUS consideration on the merits. 

(Of course, I would be greatly disappointed if the Supreme Court does not fully address post-Booker sentencing realities this term.  But SCOTUS can and will speak to many post-Booker issues in Rita even if it were to remand Claiborne without any discussion of the merits.)

Conclusive proof old crack guidelines unreasonable

Though it's still a few more days until the US Sentencing Commission releases its new cocaine sentencing report (background here and here), the USSC has now posted on its website this reader-friendly version of all its new proposed guidelines amendments.  (It also has released online this Spring 2007 newsletter which summarizes the new amendments and other USSC developments.)

The reader-friendly document describing the reasons for the USSC's new crack changes provides further support for my long-held view that the old crack guidelines were presumptively unreasonable.  Consider these paragraphs (and especially the highlighted sections):

Current data and information continue to support the Commission’s consistently held position that the 100-to-1 drug quantity ratio significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere.  These findings will be more thoroughly explained in a forthcoming report that will present to Congress, on or before May 15, 2007, a number of recommendations for modifications to the statutory penalties for crack cocaine offenses. It is the Commission’s firm desire that this report will facilitate prompt congressional action addressing the 100- to-1 drug quantity ratio.

The Commission’s recommendation and strong desire for prompt legislative action notwithstanding, the problems associated with the 100-to-1 drug quantity ratio are so urgent and comp